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Wednesday, March 6, 2013

Perpetuity in Moral Rights- More trouble than it's worth?

The
2012 amendment to the Copyright Act has brought with it several positive
changes to copyright law in India, among which, is the amendment to Section
57 of the Act. In this post, I discuss the possible implications of granting
moral rights in perpetuity, as envisaged in Section 57 of the Act, particularly
the right to integrity provided for in Section 57(1)(b).

Indian
law on the term of moral rights has shifted back and forth since the
introduction of the Act. Post the amendment of 1994, there was no stipulation
on the term of copyright but an act would amount to infringement of the
author's right to integrity only if "done before the expiration of the
copyright". This limitation in Section 57 appears to have been done away
with in the 2012 amendment to the Act, thereby providing for moral rights in
perpetuity.

Though
moral rights are independent from economic rights in a work, moral rights
extinguish upon the expiry of the copyright term in most jurisdictions.
Providing for perpetual moral rights, forbids anyone, at anytime from
claiming authorship or distorting or modifying any piece of work by the author. The debate, of course, is limited to the exercise of the author's right to
integrity and does not extend to the paternity right, which should indisputably
be entitled to perpetual protection. Its rationale seems to stem from the fact
that moral rights are associated with the author's work as much as with the
author himself. Distortion, mutilation or modification of the work of any kind,
thus, would harm the reputation of the author equally even upon his death and
perhaps more so given that the author is then unable to defend the integrity of
his work. Protection of the right in perpetuity, however seems to extend this
logic further to protect the author's personality as embodied in his work as
also to protect societal interest in preserving works of authors by preventing
unapproved use beyond the term of copyright.

The
amendment, lauded as a step forward for protection of authors, prevents cases where
works of authors in the public domain have been subject to modifications and
grave distortions. Under the law as it existed prior to the 2012 amendment, the
heirs of authors of such works were incapable of instituting an action for
violation of moral rights since such rights of the author would have expired
with the expiration of the term of the copyright in the work. Post the 2012
amendment, it now appears possible for heirs of an author to bring actions
after the expiry of the copyright in the work.

The
perquisites the amendment brings ought be weighed against the possibilities of
its misuse. The presumption that heirs are well versed in the author’s
works so as to be capable of protecting his right to integrity is rebuttable.
Additionally, it is also at odds with a subjective approach in determining the
violation of the integrity right, given its close relationship with the
personality of the author.

Providing
rights in perpetuity should therefore not be sans safeguards, as Section
57 stands today. A feasible solution to the problem lies in finding a middle
ground that not only ensures the protection of the author's reputation and
honour even after his works enter the public domain but also prevents mischief
by heirs by protecting instances of fair dealing.

Notwithstanding
this problem, a separate area of enquiry is with regard to how the infringement
of the right of integrity would be determined and the standard of proof in such
claims. A wholly objective test based on a standard of reasonableness, as
employed in most common law countries, would render the entire theoretical
basis of the doctrine futile. In these jurisdictions, the action complained of
is viewed from the point of view of a ‘reasonable person’ to determine whether
the integrity right has been violated. On the contrary, a subjective test, as
employed under French law, as well as recognized by the court in the epoch-making Amarnath Sehgaljudgment would perhaps be closer to giving effect to the jurisprudential
basis of the doctrine. The
issue assumes relevance in the context of perpetuity where it would be absurd
to apply a subjective test while the author is no longer alive. The subjective
intent of legal heirs might not always coincide with what the author would have
done in such a situation.

The
problem thus arises when the law not only needs to provide for protection of
the integrity in the author’s work even after his death but also needs to
ensure its protection without misuse by the author’s heirs. To cite an example,
Stephen Joyce, the grandson of James Joyce has strongly been enforcing his
grandfather’s moral rights by threatening to sue critics who he is in
disagreement with. The Newyorker
has an excellent piece on the issue, which aptly illustrates how
moral rights in perpetuity, may just be more trouble than it’s worth. The only
cogent solution seems to be to decide on a case-by-case basis weighing
interests from all quarters though this is a seemingly difficult task. Readers
are invited to share their thoughts on the issue.